Excerpt:tenancy - lease - section 105 of transfer of property act,1882 - acceptance of rent by land lord - held, it can be presumed from the conduct of the parties are in relation of landlord and tenant- petition allowed. - - 3. after remand by the appellate court to record a finding whether the shop was sub-let to the petitioner and whether sita ram vacated the shop for good, the prescribed authority, once more, dismissed the application for release on the finding that subletting was not established. the application was founded on such letting and the landlord's bona fide requirement to be satisfied after demolition and new construction. it is well established that a court or tribunal cannot make out a new case, a case neither pleaded nor proved......the relationship of landlord and tenant can arise by conduct.2. admittedly, the shop was taken on rent by sita ram (petitioner's elder brother)nearly 20 years ago who shifted to dehra dun within four or five years and established a separate business. the petitioner is in possession, is running the shop, is paying rent and has licence for running the shop in his name for the last 15 years. the landlord based his claim on the ground of sub-letting which was countered by the petitioner who claimed tenancy in himself. as the petitioner was a minor, the shop was taken in his elder brother's name.3. after remand by the appellate court to record a finding whether the shop was sub-let to the petitioner and whether sita ram vacated the shop for good, the prescribed authority, once more,.....

Judgment:ORDER

R.M. Sahai, J.

1. On the findings recorded by the subordinate authorities, the short question for determination in this petition is whether the relationship of landlord and tenant can arise by conduct.

2. Admittedly, the shop was taken on rent by Sita Ram (petitioner's elder brother)nearly 20 years ago who shifted to Dehra Dun within four or five years and established a separate business. The petitioner is in possession, is running the shop, is paying rent and has licence for running the shop in his name for the last 15 years. The landlord based his claim on the ground of sub-letting which was countered by the petitioner who claimed tenancy in himself. As the petitioner was a minor, the shop was taken in his elder brother's name.

3. After remand by the appellate court to record a finding whether the shop was sub-let to the petitioner and whether Sita Ram vacated the shop for good, the Prescribed Authority, once more, dismissed the application for release on the finding that subletting was not established. It was further found that the predecessor of the landlord (own brother) accepted the petitioner as tenant before Act XIII of 1972 was enforced and complete effects of Sita Ram had not been removed. The appellate court found possession of the petitioner to be unauthorised. As there was no evidence of admitting the petitioner to tenancy, he allowed the appeal.

4. As the appellate court declared the premises to be vacant and directed the Rent Control and Eviction Officer to dispose of the application for release, counsel for the petitioner has challenged the maintainability of the petition on the strength of a decision in T. Singh and Co. v. District Magistrate, Lucknow, AIR 1976 SC 1988. The petition in this case was dismissed by the High Court as premature as it was directed against an order notifying the vacancy. The Supreme Court held that it did not affect the tenant's rights as he shall have a right to contest the release application. In this case, a combined application for declaration of vacancy and release was filed. The petitioner's rights have bean adjudicated. He is seriously prejudiced by the findings recorded by the appellate court. He shall have no further opportunity in the matter. The appellate court has directed the Prescribed Authority to consider the need of the landlord and to release the premises in case it is bona fide or to allot the premises to some one else. As the petitioner has been held to be an unauthorised occupant, there is no question of comparison of the respective needs or of contesting the release application iN these circumstances, the principles laid down in T. Singh's case (supra) do not appear to be applicable to the facts of this ease.

5. In the application filed by the landlord there is no whisper that the petitioner was in unauthorised occupation. The application was founded on such letting and the landlord's bona fide requirement to be satisfied after demolition and new construction. It is well established that a court or tribunal cannot make out a new case, a case neither pleaded nor proved. The District Judge committed an error in concluding that the petitioner was not in authorised possession, a finding not only against the pleading but without affording any opportunity to the petitioner to meet it.

6. The appellate court upset the finding of the Prescribed Authority only because there was no evidence of admission of tenancy. This was never the petitioner's case. It was pleaded that the shop was taken by the elder brother in his name as the petitioner was a minor. Sita Ram by a separate objection, supported the petitioner's case. What was required to be decided was whether the shop taken by Sita Ram on rent in his name was, in fact, for the petitioner or not. The District Judge appears to have completely misunderstood the controversy that he was required to decide.

7. The following facts are admitted or proved:--

(a) The premises were let out by Sheo Barat Lal 20 years ago when he was the owner of the premises.

(b) Sheo Barat Lal sold the premises to the present landlord in 1969 who is his real brother.

(c) Sita Ram, who took the premises in dispute on rent, left for Dehra Dun and established his separate business 15 years ago.

(d) The shop was taken when the petitioner was a minor.

(e) The petitioner is in possession for the last 15 years and is running the shop. The licence of the shop is in his name and he has been paying rent regularly to the landlord.

8. On these facts, the question that arises is whether the petitioner was sub-tenant, as claimed by the landlord, or he was a tenant in his own right. A contract of tenancy can be express or implied. The Rent Control Act or the Urban Buildings Act does not lay down any specific manner of entering into the agreement, except, where the tenancy is created under the Act itself, by an allotment order. The liability to pay rent, under the Act, is determinative of the relationship between the landlord and the tenant. It has been observed by Anson in his book of Law of Contract, 23rd Edition, page 29:

'The intention of the parties is a matter of inference from their conduct and the inference is, more or less, easily drawn according to the circumstances of the case.'

The conduct or the landlord in accepting the rent with the knowledge that the petitioner was carrying on business in his own right may lead to an inference that the intention of the parties was to create the relationship of landlord and tenant, The landlord did not file any affidavit on behalf of Sheo Barat Lal, nor did he himself state on oath to deny the allegations made on behalf of the petitioner. Payment of rent is an offer and if it is accepted by the person who is competent to accept it then an implied relationship of landlord and tenant arises. The intention of the parties being clear, a binding contract came into being when Sheo Barat Lal accepted the rent from the petitioner.

9. In the result, this petition is allowed and the order dated 28-11-1975 passed by the District Judge, Mathura is quashed. The petitioner shall be entitled to his costs.